[LINK] Phorm's advertising system

[Roger Clarke]

Action in the UK to counter intrusive ISP behaviour
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FIPR Press Release

For Immediate Release: Monday 17th March 2008

Open Letter to the IC on the legality of Phorm's advertising system
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The Foundation for Information Policy Research (FIPR) has today released
the text of an open letter to Richard Thomas, the Information
Commissioner (IC) on the legality of Phorm Inc's proposal to provide
targeted advertising by snooping on Internet users' web browsing.

The controversial Phorm system is to be deployed by three of Britain's
largest ISPs, BT, Talk Talk and Virgin Media. However, in FIPR's view
the system will be processing data illegally:

*   It will involve the processing of sensitive personal data: political
     opinions, sexual proclivities, religious views, and health -- but it
     will not be operated by all of the ISPs on an "opt-in" basis, as is
     required by European Data Protection Law.

*   Despite the attempts at anonymisation within the system, some people
     will remain identifiable because of the nature of their searches and
     the sites they choose to visit.

*   The system will inevitably be looking at the content of some
     people's email, into chat rooms and at social networking activity.
     Although well-known sites are said to be excluded, there are tens or
     hundreds of thousands of other low volume or semi-private systems.

More significantly, the Phorm system will be "intercepting" traffic
within the meaning of s1 of the Regulation of Investigatory Powers Act
2000 (RIPA). In order for this to be lawful then permission is needed
from not only the person making the web request BUT ALSO from the
operator of the web site involved (and if it is a web-mail system, the
sender of the email as well).

FIPR believes that although in some cases this permission can be
assumed, in many other cases, it is explicitly NOT given -- making the
Phorm system illegal to operate in the UK:

*   Many websites require registration, and only make their contents
     available to specific people.

*   Many websites or particular pages within a website are part of the
     "unconnected web" -- their existence is only made known to a small
     number of trusted people.

The full text of the open letter can be viewed at:

     http://www.fipr.org/080317icoletter.html

QUOTES

Said Nicholas Bohm, General Counsel, FIPR:

     "The need for both parties to consent to interception in order for
     it to be lawful is an extremely basic principle within the
     legislation, and it cannot be lightly ignored or treated as a
     technicality. Even when the police are investigating as serious a
     crime as kidnapping, for example, and need to listen in to
     conversations between a family and the criminals, they must first
     obtain an authorisation under the relevant Act of Parliament: the
     consent of the family is not by itself sufficient to make their
     monitoring lawful."

Said Richard Clayton, Treasurer, FIPR:

     "The Phorm system is highly intrusive -- it's like the Post Office
     opening all my letters to see what I'm interested in, merely so that
     I can be sent a better class of junk mail. Not surprisingly, when
     you look closely, this activity turns out to be illegal. We hope
     that the Information Commissioner will take careful note of our
     analysis when he expresses his opinion upon the scheme."

CONTACTS

Nicholas Bohm
General Counsel, FIPR
01279 870285
nbohm at ernest.net

Richard Clayton
Treasurer, FIPR
01223 763570
07887 794090

NOTES FOR EDITORS

1.  The Foundation for Information Policy Research (http://www.fipr.org)
     is an independent body that studies the interaction between
     information technology and society. Its goal is to identify
     technical developments with significant social impact, commission
     and undertaken research into public policy alternatives, and promote
     public understanding and dialogue between technologists and policy-
     makers in the UK and Europe.

2.  Phorm (http://www.phorm.com/) claims that their "proprietary,
     patent-pending technology revolutionises both audience segmenting
     techniques and online user data privacy" and has recently announced
     that it has signed agreements with UK Internet service providers BT,
     TalkTalk and Virgin Media to offer its new online advertising
     platform Open Internet Exchange (OIX) and free consumer Internet
     feature Webwise.

3.  In a statement released on 3rd March the Information Commissioner's
     Office (ICO) said:

         "The Information Commissioner's Office has spoken with the
         advertising technology company, Phorm, regarding its agreement
         with some UK internet service providers. Phorm has informed us
         about the product and how it works to provide targeted online
         advertising content.

         "At our request, Phorm has provided written information to us
         about the way in which the company intends to meet privacy
         standards. We are currently reviewing this information. We are
         also in contact with the ISPs who are working with Phorm and we
         are discussing this issue with them.

         "We will be in a position to comment further in due course."

--ends


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-- 
Roger Clarke                  http://www.anu.edu.au/people/Roger.Clarke/

Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611 AUSTRALIA
                    Tel: +61 2 6288 1472, and 6288 6916
mailto:Roger.Clarke at xamax.com.au                http://www.xamax.com.au/

Visiting Professor in Info Science & Eng  Australian National University
Visiting Professor in the eCommerce Program      University of Hong Kong
Visiting Professor in the Cyberspace Law & Policy Centre      Uni of NSW